Friday, 25 October 2013

JEWELLERY & DOWRY!!!

Given the increase in the population of the Asian community over recent years, it is perhaps no surprise that the English courts have seen a massive rise in cases concerning dowry issues and, in particular, jewellery exchanged on marriage. The whereabouts of jewellery, its origins, its value and whether it has been unlawfully retained by one spouse are just some of the issues the court will need to tackle at an early stage.


Thursday, 17 October 2013

HOW TO MAINTAIN A FOOTBALLER'S WIFE


Firstly, dealing with a bit of house keeping, for those of you who follow my blog, I am sorry that there has been some delay since my last posting. I am pleased to announce that my partner gave birth to a baby and as a result I have been side tracked by sleep deprivation!

Turning now to this week’s blog. Being increasingly instructed by professional footballers and their partners, I wanted to spice up my blog up with a discussion about the unique considerations in cases concerning footballers and in particular the approach of the courts to maintenance awards.


The Case

Cases involving footballer are rarely reported. It is fair to say, however, that very few people will not have heard about the case involving Ray Parlour (Parlour v Parlour [2004] All ER (D) 105 (Jul)). There is a common misconception amongst the lay public that all aspects of the Parlour case were litigated to the bitter end and a draconian award was imposed on Mr Parlour. That, in fact, was not the case.

The only issue that went to trial was the value of the Wife’s periodical payments. The division of the capital between the parties had been agreed at a Financial Dispute Resolution hearing, which is a judge-led negotiation hearing where, the only way a final order can be made, is by agreement between the two parties.

It is right to say that whilst the legal issue was fairly narrow, the factual issues in dispute were broad. Whether Mr Parlour was a gambler or whether he had conspired to conceal one of his streams of income were two of a number of issues.

The salient facts of that case were that the parties met in February 1990 when the Wife was a 20 year old employee at a local optician. At the time Mr Parlour was an apprentice footballer having signed for Arsenal in the summer of 1989. Mr Parlour turned professional in March 1991 and reached the first time by January 1992. Though they did not marry until June 1998, they were engaged in early 1994 and, upon Mr Parlour’s encouragement, the Wife gave up her employment and became financial dependent upon Mr Parlour. By May 1999 3 children had been born to the marriage. In November 2001 Mr Parlour left the matrimonial home.

The agreement at the FDR provided for the Wife to have a property of modest value in Norfolk and a lump sum of £250,000, representing about 37% of the capital available for division.

In August 2001 Mr Parlour signed a 4 year deal with Arsenal. Having heard expert evidence the Court accepted at trial that Mr Parlour was likely to receive an average of £1.2m p/a until the expiry of his contract.

The issue for the court was the quantum and length of the maintenance award to the Wife and whether, in particular, the weight the court should attach to the contributions made by Mrs Parlour to home life. At trial the Judge concluded:

“She is a full time Mother of three children aged, 8, 6 and 4. I am satisfied that she bore the brunt of bringing the children up whilst the parties co-habited. Furthermore it is obvious that she will have to bear the burden of bringing them up during their childhood....That I recognise at once is, together with her past caring for the children, an enormous contribution. I am satisfied too that she has no earning capacity....” (emphasis added)

Acknowledging that the Wife had not sacrificed any career opportunities the Judge went on, notwithstanding, to find:

“She told me in evidence that she made no sacrifices in giving up her work with the opticians in 1994 nor has she been disadvantaged in staying at home. She accepted that she had not given up any career. There is no dispute, as I understand it, that the wife was a marvellous mother and ran the household efficiently and looked after the children and the Husband to the very best of her considerable ability.”

Further credit was given to the Wife when the judge also found:

“...he was and is a very talented footballer... so, strictly speaking, the financial wealth of the family was created by the Husband. However, in my judgment, there is a very significant factor in the success of the Husband in which the Wife played a vital role. The Wife has suggested in her evidence that the husband was and is a drinker. From what I have read in the papers and been told...I am satisfied that the husband was in an environment where, before the advent of Arsene Wenger in 1996, there was very considerable drinking amongst certain players in the Arsenal Football Club...the Wife realised that that was the way to ruin and unhappiness and I am satisfied that in about the mid 1990’s she took a grip on the situation and encouraged and persuaded her Husband to move away from that style of living....Thus the wife did make a contribution to the husband’s success as a footballer for Arsenal and also for England ...”(emphasis added)

The Learned Judge went on to accept that Mr Parlour’s earnings were likely to dramatically reduce upon expiry of his contact, by which time he would have been aged 32.

The Award

Having made an array of findings the Judge went on to consider the law. In trying to achieve a fair award the Judge reminded himself that there is no place for discrimination between the spouses and their respective roles. There should be no bias in favour of the money-earner and against the home-maker and child-care.

The Husband offered periodical payments of 10% of his net income (roughly £120,000 p/a). Despite concluding that the sum of £150,000 would be sufficient to meet the Wife’s and children’s needs generously interpreted, the Judge viewed this offer as “thoroughly mean and unfair”. In his words “her contributions to the home, and the children, both now and in the future must not be underestimated, overlooked or played down...she was part of the circumstances that persuaded the husband to drop the laddish culture...”

Against this back drop he awarded the wife and children periodical payments in the global sum of £250,000.00 p/a for the rest of her life to be split between the wife and children.

Unsurprisingly the case went to appeal. At the appeal the Judge increased the award to £440,000 p/a (roughly
a 1/3 of Mr Parlour's earnings) but on the basis that the term would end in 4 years time (ie when Mr Parlour’s contract expired), acknowledging that Mr Parlour was approaching the end of his career, he was prone to injury and his contract may not be renewed. By increasing the award (above any financial need) the judge considered that this was necessary to make up for the potential years of famine when Mr Parlour’s career came to an end and at the same time achieving a clean break.

Conclusion

It is clear to see that the considerations in cases involving footballers are particularly unique. Careers are much shorter and are subject to risk such as injury and loss of form but to name a few. Having built up a specialism in this area I cannot over emphasise the importance of avoiding the temptation to advance a case for periodical payments without an understanding of the intricacies of life as a footballer.



Sunday, 28 July 2013

A STORY OF HUMAN TRAGEDY: JUSTICE HOLMAN BEMOANS "FINANCIAL SUICIDE" OF DIVORCING PARTIES

The case of Sekhri v Ray [2013] EWHC 2290 (Fam) is a stark reminder of the way in which litigation costs in the matrimonial arena can spiral out of control. As usual Justice Holman pulls no punches in his judgment.
 
The Background
 
Mr Ray and Ms Sekhri met in their mid-thirties via an online dating agency in December 2008.  Mr Ray is a successful partner in a highly regarded American law firm. Ms Sekhri is a paediatric anaesthetist, working at Great Ormond Street Hospital.
 

Tuesday, 2 July 2013

TO FREEZE OR NOT TO FREEZE?


With the temperatures forecast to reach a yearly high next week, I thought it appropriate to discuss the guidance given by Mostyn J on freezing orders.

The Dilemma

It is not infrequent for a client to inform you in the initial meeting that they suspect there Husband (sorry chaps, it usually is!) may dispose of assets. Downloading official copies of the register of property titles at HM Land Registry is often the starting point. Unavoidable questions arise from this step: Is he taking steps to shift the asset? What are his intentions? Is this the principle asset of the marriage? What is the extent of the other assets available?

Saturday, 4 May 2013

RELATIONSHIP CONTRACTS...??


Nowadays it seems that not a day goes by without your inbox being inundated with links to various websites or articles. Typically many of them are quickly discarded to the junk box. However, I could not help but feel enticed by a recent link I received (Of course I should make clear that the inquisitiveness was purely professional and I was concerned only with the legal connotations (!)).

“How relationship contracts are growing popularity - Sex twice a week”
http://www.dailymail.co.uk/femail/article-2317173/How-relationship-contracts-growing-popularity-Sex-twice-week-I-agree-stay-120lbs.html

In an age of increasing commercialisation, the ever growing popularity to put a legal stamp on marriages through pre and post nuptial agreements, together with the emergence of cohabitation deeds, I do suddenly wonder whether the idea of a relationship contract is not so far fetched after all. I fully understand the argument that the existence of legal documents governing a relationship or its breakdown is not exactly the most romantic footing on which to start a marriage or indeed a relationship. However, as public awareness increases, I am more frequently being asked to advise on how parties can legalise relationships. Indeed, as an unmarried practitioner, I find resonance with the need to draft cohabitation deeds (although I think my partner would throw me out at the suggestion! (It never ceases to surprise me as to how many people remain under the misconception that cohabitation creates a “common law marriage” and thus gives an outgoing partner all the same rights as if they were married)).

So is sex once or twice a week really too much to ask?? Or is too unreasonable to expect your partner to keep in shape?? Personally I will decline to pass comment. My own view is that, whilst I accept a relationship contract is unconventional, if it works for the couple then good luck to them. Indeed it has got me thinking how I am going to broach the topic with my own partner…..! I will let you know how that goes.

Enjoy.

I am regularly instructed to draft and advise in respect of nuptial agreements and cohabitation deeds. Please feel free to contact me should you require advice in relation to these or any other matrimonial/civil matters.

Monday, 4 March 2013

BIRMINGHAM’S DIVORCE RATE: ARE THE “SQUEEZED MIDDLE” REALLY TO BLAME?

Perhaps it is some intrinsic loyalty I hold to the city I serve, however, I couldn’t help but feel slightly annoyed at the negative press the city of Birmingham received last week. (Birmingham Mail ‘Birmingham is branded divorce capital of Birmingham’ 24th February 2013 http://www.birminghammail.co.uk/incoming/birmingham-branded-divorce-capital-britain-1344289)

In particular the author seems to have, in my view, unfairly stereotyped those families who form part of the politically labelled “squeezed middle.” It seems that the source of the author’s article attributes firm blame on the 2,799 Decree Absolutes made between October 2011 to September 2012 in Birmingham on families living in “leafy suburbs”. The source goes on to say that:

“crumpled by the credit crunch, affluent couples put a strain their marriages while working holidays longer hours and taking business home to pay for plush homes, 4x4s, private school fees and lavish holidays.”

Although on a cursory glance the divorce rates in Birmingham do not paint the city in a positive light, the headline fails to allude to the divorce rates of Greater London, which exceeded those of Birmingham. Moreover, on a more detailed analysis we see that the areas such as Solihull are included within the catchment. Despite the ‘middle class’ being shouldered with most of the blame, there is a complete absence of a report on the demographics which make up the Decree Absolute rate.
This makes me wonder what is the real purpose of the article?

Is there an underlying motive?

There is no doubt that the article represents an overriding political drive to divert separating parties to mediation and to demonise family lawyers.  Whilst (as my clients will testify) I am a firm advocate of parties engaging in the process of mediation (if possible) and to encourage early and amicable settlements, I resent a false presentation of the process, which places mediation in competition with good legal advice. With particular interest I note the article claims that:

“The average cost of settling disputes through mediation is £500 and the process takes 110 days….Those unfortunate enough to be caught in a Kramer v Kramer courtroom battle (a lengthy and exceptional case, with complex issues, litigated in the High Court) will fork-out £4,000 and wait 435 days before their decree nisi comes through.” (brackets added)

As any good lawyer will tell you, each case turns on its own facts.  What is however particularly disappointing is the allusion that, by attending mediation, it will result in Decree Nisi (which is the first stage of a divorce) being made at an earlier date. This is simply inaccurate. In reality, in almost all cases, whether the parties engage in mediation has little relevance or impact on the timescales to Decree Nisi. Indeed, drafting errors made by those representing themselves (or indeed sloppy drafting by lawyers) is often a source of delay in parties being able to encompass any agreement reached in mediation into a financial consent order.

If mediation is to be a long term solution (particularly in cases where the pool assets and issues go beyond the realms of ‘straightforward’), it is essential that each party is guided by good quality legal advice. Sensationalised press, which seeks to pitch a competition between lawyers and mediators, whilst isolating those suburban families for criticism is simply counter productive and represents a completely false presentation of the family justice system.

I advise on all aspects of matrimonial law. I regularly assist parties in facilitating early settlements and legalising agreements reached in mediation.

Sunday, 24 February 2013

CHILD ABDUCTION: THE IMPORTANCE OF CONSENT


Perhaps, the first question you ask a client, to ascertain whether a removal is or isn’t wrongful, is whether such removal was consensual, by that we mean (in broad terms) by implied or expressed consent. In most cases, on taking evidence from the client, this is clear cut and one can be advised clearly on the redress available to them. However, from time to time this important issue can give rise to grey areas, the outcome of which can underpin the outcome of inevitable litigation.

The point is highlighted in the recent case of N v A (Abduction from Pakistan) [2013] EWHC 3954 (Fam). The case also cements the principle that, once a return order has been made, the jurisdiction to decide the outcome of the case lies with the country in which the child has been declared habitually resident.

The Case
The case concerned a girl aged just 3 years old. Her Mother, who lived in Pakistan and was a Pakistani National, applied for the return of her daughter. The Father, who was a British Citizen (and carrier of a Pakistani I.D Card), had taken the child to the UK in June 2012.
On the Father’s case, he said the removal was one step in a mutual plan to relocate to the UK. He said that it was agreed with the Mother that she would follow Father and daughter once the necessary visa had been obtained.  In support of his case he pointed to the joint application made by the parents in January 2012 to the High Commission in Islamabad for a British Passport for the child.
The Mother denied the plan. She rejected the notion that she had given consent and asserted that the removal was wrongful. It is against the background of the case from which the Mother’s immediate case finds credence.

The Background
The parents were first cousins and married in 2000. Not unusually following marriage Father returned to the UK pending Mother’s approval for a British visa. However, somewhat unusually is the passage of time to Mother’s visa being refused – some 5 years later in September 2005. Two years later Father chose to be reunited with Mother in Pakistan and settled there, leading to the birth of their daughter in July 2009. In November 2010, Father entered into a second marriage without telling his family or the Mother. The Mother was said to be devastated, however, following meetings between elders the pair reconciled in September 2011.

The Decision
Following the removal of the child in June 2012, the Mother made an application in the High Court for the summary return of her daughter to Pakistan. There was some delay in the application being made. It came before the Court in September 2012, after an unsuccessful application in a local court in Pakistan for the recovery of the child.
On the 17th September 2012, Justice Bodey gave provisional declarations that the child was habitually resident in Pakistan and that it was a wrongful removal.
The case went before Mrs Justice Hogg on the 21st December 2012. A robust judgment was handed down. In paragraph 23 of her judgment Mrs Justice Hogg arrived at the following conclusion:


Wednesday, 30 January 2013

STRIKE OUT PLEASE??


I happened to be enlightened by a Member of the Bar (Sundeep Virk: Cornwall Street Chambers) toda as to a new substitution within the civil procedure rules, essentially giving judge’s a much wider discretion to refuse to give relief to a litigant who has been sanctioned (usually) for non compliance with court directions.

With the risk of stealing the limelight from Sundeep, I have taken the liberty (with his permission of course) to publish his well considered comments on the matter:

“…as well as legal aid going in April 2013, so will CPR rule 3.9 which will be deleted in its entirety and substituted with the following wording which has been approved by Rule Committee:

 
'On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider the circumstances of the case, so as to enable it to deal justly with the application including the need -

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and court orders.'

This is a somewhat stricter rule as it leaves judges with a wider discretion to refuse relief, which is the intention of the high judiciary who seem to have had enough of matters being struck out for one reason or another, but principally for non-compliance with court directions, and the district courts granting relief after conducting a “tick box” exercise following the current 3.9.

If relief is sought then there will be the need for an application which will have to be supported by evidence. I presume that many of the factors in the current 3.9 will feature in post 1/4/13 applications for relief from sanction, for the initial period at the very least.

In Fred Perry (Holding) Ltd (1.2.12) (CA) Jackson LJ did not fault Henderson J for conducting a tick box exercise, but refusing relief from sanction, said that the current 3.9 gives the court a discretionary power to grant relief against sanction and whist the court must consider all the factors set out in the current 3.9, it was not simply a matter of the court ticking all the boxes to show that consideration has been given. Jackson LJ went on highlight the amendment that is due to replace the current 3.9.

Interestingly where relief is not granted after a matter is struck out due to the negligence of solicitors; the only proper recourse would be to sue that solicitor in Professional Negligence.”

Sundeep Virk is a barrister and practises from Cornwall Street Chambers in Birmingham. His profile can be viewed by clicking on the following link: www.cornwallstreet.co.uk/index.php/.../9.../144-sundeep-virk

Saturday, 26 January 2013

THE ULTIMATE SANCTION

Ironically, perhaps one of the most key roles I undertake as a family solicitor is to step aside from being a lawyer, and recognise, on a human level, that the client is often coming to you at a time when they are amidst a hugely emotional and stressful period in their life. It is a simple fact that some people find it easier to come to terms with a marital breakdown than others.

For many people the financial consequences which flow from a marriage (and subsequent separation) can (understandably in my view) often be the source of the most troublesome thoughts. Indeed I often represent those people who are striving to achieve a 'clean break' so that they can live their life outside of the metaphorical prison that is spousal maintenance. It is my job to seek to achieve my client's aims and to manage these expectations in accordance with the current law.

It won't surprise you, however, that a minority of people, regardless of circumstances, seemingly never come to terms with the prospect of financially maintaining a spouse after divorce and to divide assets which they see as the fruits of their sole labour....Comments such as "I will never pay her (usually a her) a penny" and "I bought our house, she is not having anything" are all too familiar.

It is against this background that I found some resonance in the decision of Mr Justice Moor in the case of Young v Young [2013] EWHC 34 (fam).

THE CASE

The case concerned applications made by Mrs Michelle Young (who was represented by Queens Counsel) to commit Mr Scot Young to prison for contempt of court and, secondly, to activate a suspended committal order made in 2009. The issue for Mr Justice Moor, which I will turn to in due course, emanates (as they usually do in cases of this nature) from an extensive litigation history.

In brief summary, Mrs Young contended that the Mr Young was worth £400 million, which were made up of undisclosed assets. Mr Young said that he was penniless. As is her right, Mrs Young put various questionnaires' to Mr Young, which he repeatedly, despite court orders requiring him to do so, neglected and failed to properly answer. It led to by Mrs Justice Parker committing Mr Young to prison in June 2009. She did however throw a lifeline to Mr Young by suspending the sentence for 92 days to enable him to answer the questionnaires'. Mr Young then failed to respond within the time limits, contending that he had been detained under the Mental Health Act.

Then came the real body blow to Mr Young. On an application made by Mrs Young for Maintenance Pending Suit, in December 2009 she was awarded a sum of £27,500 p/m, payment of her rent and the children's school fees. He has never made a single payment and arrears now stand at just short of £1million.

The case wet stale for over a year and it took a further year for the Court to rule in October 2012 that Mr Young was to provide, amongst other things, replies to those questionnaires filed in 2009. Mr Young was told that he would face prison if he maintained his refusal to comply.

THE DECISION